United States District Court, N.D. New York
July 12, 2004.
JAMES J. DOLAN, Plaintiff,
ARTHUR ROTH, Commissioner; New York State Department of Taxation, et al., Defendant.
The opinion of the court was delivered by: NEAL McCURN, Senior District Judge
Plaintiff James Dolan is a self-described "outspoke[n] and
vigorous activist in that Democratic party in the City of Hudson,
located in Columbia County, State of New York." Complaint ("Co.")
at 10, ¶ 26. In this action, brought pursuant to
42 U.S.C. § 1983, plaintiff alleges that his First Amendment and Equal
Protection rights were violated when defendants terminated him in
retaliation for his Democratic party affiliation. This alleged
retaliation occurred when plaintiff was terminated as an
Investigator with the New York State Department of Taxation and Finance ("the Tax Department").*fn1 From defendants'
standpoint, plaintiff's disqualification was not politically
motivated. In fact, it was entirely proper because during the
application process for an investigator position, he omitted
relevant facts pertaining to a prior conviction, which occurred
during his employment as Chief of Police for the Hudson City
Defendants are now moving for dismissal pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. They
are also moving to dismiss under Fed.R.Civ.P. 12(b)(6) for
failure to state a claim upon which relief may be granted.
Plaintiff cross moves for an order of discovery pursuant to Fed.
R. Civ. P. 56(f).
I. Hudson City Police Department
Plaintiff first began serving as Chief of Police of the Hudson
City Police Department on October 3, 1986. Co. at 11, ¶ 27.
During his service, plaintiff was the subject of two separate
indictments. Id. at 14, ¶ 39 and 16, ¶ 45. Eventually he was
convicted of four misdemeanors. Id. at 16, ¶ 47. Broadly
stated, from plaintiffs' perspective the motivation for his
indictment was because "[p]rominent Republicans in Columbia
County, including the Sheriff and District Attorney, viewed [him]
as a threat to the Republican Party's political control of
Columbia County and the Sheriff's office in [that] County, which
was source of patronage jobs for County Republicans." Id. at
14, ¶ 38. As a result of his convictions, "plaintiff was placed
on probation, [and ordered to] pa[y] a fine, and [to] complete
community service." Id. at 16, ¶ 47. However, later the
sentencing judge found plaintiff guilty of violating his
probation. Therefore, plaintiff was sentenced to 60 days
imprisonment, continued probation and an increase in the number
of community service hours to be performed. See id., exh. A
thereto at 2.
Plaintiff's career with the Police Department was over.
II. State Investigator Position
Once the dust had settled, "in 1996 plaintiff decided to apply
for a position as an investigator with [the] State in order to
make use of his background and experience in law enforcement."
Id. at 17, ¶ 48. As part of the hiring process, plaintiff took
three different civil service examinations, scoring 100% on two of the tests and 95% on
the third. Id. at 17, ¶ 50. Despite those high test scores and
his number one ranking "on all three statewide eligible lists[,]"
on approximately August 7, 1996 one of the defendants, Joseph R.
Healy, Director of Investigations for the State Civil Service
Department ("Civil Service"), advised plaintiff that "he could
not be appointed at that time[.]" Id. at 17, ¶ 51. The reason
given by Healy was that plaintiff answered "yes" to certain
questions regarding whether he had been discharged from
employment "for reasons other than lack of work or funds,
disability or medical condition; and whether he had ever been
convicted of a crime." Id. at 17-18, ¶ 51.
Plaintiff thus was required to complete additional Civil
Service forms to "evaluat[e] the circumstances of the affirmative
answers" which plaintiff had given. Id. at 18, ¶ 52. As part of
this further background check, plaintiff was required to provide
Civil Service with a report from the Columbia County Department
of Probation. Id. at 19, ¶¶ 55-56. Plaintiff made that request
and Probation responded. Id. at 20-21, ¶ 57. "Civil Service,
for unknown reasons, never received Probation's statement which
it had sent to Civil Service pursuant to petitioner's request.
Affirmation of Robert Siegfried (Aug. 28, 2003), exh. A thereto
(Record on Appeal of Article 78 Proceeding ("R."), at 7. On
August 23, 1996, defendant Healy informed plaintiff that Civil
Service had made "`an informed determination'" and that
plaintiff's "`explanation'" was "`found satisfactory'" and thus
his name could "`be certified' for appointment." Co. at 22, ¶ 59.
Despite certification in 1996, plaintiff was not actually
appointed to an Investigator position until several years later,
on February 17, 2000. Id. at 22, ¶ 62. During the years between
his dismissal as Police Chief and his State appointment,
plaintiff continued to maintain a relatively high profile in
local Democratic politics. Id. at 23, ¶¶ 65-71.
III. Civil Service
Plaintiff's employment as a Tax Department Investigator was
short-lived, however. He worked for approximately seven weeks.
Soon after his appointment the "Hudson Register-Sun" ran an
article about plaintiff stating, among other things, that his
career with the police department ended "in controversy when he
was prosecuted on a variety of criminal charges relating to this
job as Hudson's police chief." Co., exh. B thereto. That article
went on to note that plaintiff, a Democrat, had been appointed
with a Republican governor in office. Id. at 24, ¶ 73, and exh.
B thereto. Following the publication of that article, purportedly
"Republican Party officials" contacted defendant Hard, who at
that time was the Tax Department's Deputy Commissioner. Co. at
24, ¶ 74. Supposedly she then contacted Tax Department officials
regarding plaintiff's employment. Id. at 24-25, ¶ 74. An
investigation ensued. After a several month investigation into
the circumstances surrounding plaintiff's appointment, on
September 19, 2000 Civil Service revoked plaintiff's appointment
and he was terminated effective September 21, 200. Id. at
30-31, ¶ 89 and 33, ¶ 93. The stated reason for that termination
was that plaintiff did not "disclose in his 1996 employment
application certain facts regarding his violation of probation
and subsequent resentencing on a prior criminal conviction." R.
IV. Article 78 Proceeding
Plaintiff then appealed to the Civil Service Commission and
shortly thereafter commenced an Article 78 proceeding in state
court. Co. at 34, ¶¶ 94 and 95. During the Article 78 proceeding,
relying upon section 50(4) of the Civil Service Law, the Supreme
Court held that the "Civil Service's decision to revoke
[plaintiff's] appointment, . . ., was fully in accordance with
the law." R. at 8. That statute reads in relevant part as
follows: "[T]he state civil service department . . . may
investigate the qualifications and background of an eligible
after has been appointed from the list, and upon finding facts
which if known prior to appointment, would have warranted his
disqualification, . . . may revoke such eligible's certification
and appointment and direct that his employment be terminated[.]"
N.Y.Civ. Serv. L. § 50(4) (West Supp. 2004). In the Supreme
Court's opinion, plaintiff's "parole violation and subsequent
re-sentencing were facts that, if known to . . . Civil Service in
August 1996, would have justified a disqualification and refusal
to certify [plaintiff] on the eligible list." Id. at 8. Thus,
the state supreme court soundly concluded that "even if the
petitioner's application could not be viewed as false or
deceptive to the degree that it did not disclose his probation
violation, Civil Service's decision to revoke petitioner's
appointment, . . ., was fully in accordance with law." Id.
On appeal the Third Department affirmed, also invoking Civil
Service § 50(4), pointing out that Civil Service's decisions
under that statute are "purely a matter of discretion[.]" Dolan
v. New York State Department of Civil Service, 304 A.D.2d 1037,
1038 (3rd Dep't 2003) (citation omitted). The Appellate Division
agreed with Civil Service's rationale for disqualifying
plaintiff, i.e. the integrity required of investigators in the
Tax Department justified revoking plaintiff's position based "upon a finding of material omission of facts that
otherwise would have precluded [plaintiff] from qualification[.]"
Id. at 1039. Then, given the "wide discretion" which Civil
Service is afforded "[i]n determining the fitness of candidates
for civil service employment," the court accurately noted that
its review was "limited to . . . whether the agency action was
arbitrary or capricious[.]" Id. (citation omitted). Given that
"limited" standard of review, the Third Department held that
plaintiff's "failure to mention his probation violation in the
application supplement provided a rational basis for the
conclusion that such omission was deceptive and intentional,
thereby justifying revocation of [plaintiff's] appointment."
In that appeal plaintiff also raised the issue of Supreme
Court's denial of his request for discovery. The Appellate
Division held that the Supreme Court properly denied same because
"`judicial review of an administrative determination is limited
to the record before the agency and proof outside the
administrative record should not be considered[.]'" Id.
(internal quotation marks and citation omitted). The court
concluded by stating that it has "considered petitioner's
additional contentions, including his assertion that he was
denied due process, and [it] f[ound] them equally unpersuasive."
Id. On May 29, 2003 plaintiff sought permission to appeal the
Appellate Division's decision to the New York Court of Appeals.
Siegfried Aff., exh. E thereto. For whatever reason, that appeal
did not go forward.
On April 30, 2003 plaintiff commenced this section 1983 civil
rights action wherein he alleges two causes of action: (1) that
he was terminated as a Tax Department investigator in retaliation
for exercising his First Amendment rights, and (2) that that
termination violated his Equal Protection rights.
I. Scope of Review
"When (as here) a jurisdictional challenge under Fed.R. Civ.
P. 12(b)(1) is addressed to the complaint, a court accepts as
true all the factual allegations in the complaint and must draw
all reasonable inferences in favor of the plaintiff." Lunney v.
United States, 319 F.3d 550, 554 (2d Cir. 2003) (citations
omitted). The same standard applies to a Rule 12(b)(6) motion.
See Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). In
setting forth their respective version of the facts, the parties
have cited to documents beyond the complaint however. For
example, they heavily rely upon the record on appeal in
plaintiff's prior Article 78 proceeding. Thus it is necessary to determine to what extent a court may consider
matters outside the complaint here.
Even though Rule 12(b) motions are "testing the adequacy of the
complaint," see United States v. City of New York,
359 F.3d 83, 88 (2d Cir. 2003) (citation omitted), in deciding such
motions courts also may "review documents extraneous to the
complaint[.]" Salichs v. Tortorelli, No. 01 Civ. 7288, 2004 WL
602784, at *2 (S.D.N.Y. March 29, 2004) (citing Chambers v. Time
Warner, 282 F.3d 147 (2d Cir. 2002)). Courts may look to such
documents when they are "`integral'" to the complaint because the
complaint "relies heavily upon [the] terms and effect [of those
documents.]" Pollock v. Ridge, 310 F. Supp.2d 519, 524 (W.D.N.Y.
2004) (internal quotation marks and citations omitted) (KC). A
court may also take into account "any documents attached to the
complaint or incorporated by reference[,]" Rombach v. Chang,
355 F.3d 164, 169 (2d Cir. 2004) (citation omitted), as well as
"`matters of which judicial notice may be taken.'" United States
Fidelity & Guaranty Company and American Home Assurance v.
Petroleo Brasileiro S.A., No. 98 CIV 3099, 2001 WL 300735, at *2
(S.D.N.Y. March 27, 2001) (quoting Leonard F. v. Israel Discount
Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999)) (other
citation omitted). As to the latter, a court is "permitted to
take judicial notice of court documents from previous actions."
Washington v. United States Tennis Association, Inc.,
290 F. Supp.2d 323, 326 (E.D.N.Y. 2003) (citing, inter alia,
Marchon Eyewear, Inc. v. Tura L.P., No. 98 CV 1932 (SJ), 1999
WL 184107, at *2 (E.D.N.Y. March 28, 1999) (relying on pleadings
and judgments in a prior action in granting a motion to dismiss
on preclusion grounds)); see also Titan Sports, Inc. v.
Hellwig, No. 3:98-CV-467, 1999 WL 301695, at *6 (D.Conn. April
26, 1999) (citations omitted) (court "may take judicial notice of
any decisions and filings in related litigation between the
In accordance with those principles, in addition to the
complaint, the court will consider the two documents attached
thereto, i.e. an August 12, 1996 letter from the Columbia
County Probation Department to the New York State Department of
Civil Service regarding plaintiff Dolan and a copy of a February
23, 2000 article from "The Hudson Register Star" regarding
plaintiff's appointment as a Tax Department Investigator. It will
also take judicial notice of the record of the Article 78
proceeding and the decisions arising therefrom.*fn2 To the
extent that the parties are relying upon exhibits, affirmations or other
extraneous materials which do not meet the criteria set forth
above, the court is disregarding same. See Petroleo Brasileiro
S.A., 2001 WL 300735, at *2 n. 4.
II. Plaintiff's Cross-Motion for Discovery
In opposing the State's Rule 12 motion to dismiss, plaintiff is
relying upon subsection (f) of Fed.R.Civ.P. 56, which governs
summary judgment motions. This Rule, entitled "When Affidavits
are Unavailable" and expressly provides:
Should it appear from the affidavits of a party
opposing the motion that the party cannot for reasons
stated present by affidavit facts essential to
justify the party's opposition, the court may refuse
the application for judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may
make such other order as is just.
Fed.R.Civ.P. 56(f). On the basis of this Rule, plaintiff seeks
denial of the State's dismissal motion and a "postpon[ement]" or
a "continu[ance]" of the State's motion, to give plaintiff an
"opportunity to initiate and complete full discovery[.]" Notice
of Cross-Motion at 3, ¶ (a).
The State responds that this cross-motion for discovery should
be denied because in the state court proceedings plaintiff did
have "a full and fair opportunity to litigate" the claims which
he is pursuing herein. In making this argument, the State points
out that plaintiff's current discovery demands are the same as
those which were made and rejected in the state court.
This argument is non-responsive to plaintiff's cross-motion. At
least as plaintiff has framed it, the issue is a very narrow one
whether or not he is entitled to discovery under Rule 56(f).
The issue of whether he had a fair and full opportunity to
litigate the claims which are the subject of this lawsuit is, in
the context of the present motions, a distinct issue which will
be addressed vis-a-vis the State's motion to dismiss.
Nonetheless, for several reasons plaintiff's reliance upon
Rule 56(f) is completely misplaced. First of all, obviously that Rule
in and of itself does not provide a basis for denying the State's
Rule 12 motion. Even assuming arguendo that the State was
moving for summary judgment under Rule 56, subsection (f) still would not provide a
basis for dismissal because it allows for discovery in
appropriate circumstances not outright dismissal. Second,
because the State's motion "is one for dismissal, not summary
judgment . . ., a Rule 56(f) continuance is inapplicable." See
Thomas v. Nakantani, 128 F. Supp.2d 684, 694 (D.Hawai'i 2000),
aff'd on other grounds, 309 F.3d 1203 (9th Cir. 2002).
Accordingly, the court denies plaintiff's cross-motion to dismiss
and its cross-motion for discovery brought pursuant to
III. State's Rule 12(b)(1) and 12(b)(6) Motions
A. Due Process
Plaintiff's purported due process claim need not detain the
court for long. As the State reads the complaint, plaintiff is
alleging a denial of due process as he did in the Article 78
proceeding. This is a plausible reading of the complaint. For
instance plaintiff alleges that he did not receive prior notice
of the affidavit submitted at the January 30, 2001 Civil Service
meeting. Therefore, plaintiff alleges that he had no opportunity
to review or respond thereto, and no opportunity to
cross-examine. Co. at 36, ¶ 102 In a similar vein, plaintiff
alleges that that meeting was "not a `hearing' because no
witnesses were sworn and no testimony was taken, but only oral
arguments were presented." Id. at 35, ¶ 98. These are
representative of several allegations in the complaint which, if
proven, could establish a due process violation.
Despite the foregoing, in opposing the State's motion plaintiff
explicitly states: "In the first place, [his] complaint does
not specifically allege a due process cause of action."
Plaintiff's Memorandum of Law in Opposition to Defendants' Second
Motion to Dismiss and in Support of Cross-Motion for Discovery
("Pl. Opp'n") at 15 (emphasis added). The court will not ignore
that unequivocal declaration. After all, under the well pleaded
complaint rule "a plaintiff is master of the claim.'" Virgilio
v. Motorola, Inc., 307 F. Supp.2d 504, 512 (S.D.N.Y. 2004)
(quoting Caterpillar v. Williams, 482 U.S. 386, 392 (1987)).
Accordingly, the court is "bound to accept [p]laintiff[`s]
characterization of [his] own claims." Id. Adopting plaintiff
Dolan's characterization of his claims means that he is not
asserting a due process violation. Consequently, there is no need
to address the State's argument that the Rooker-Feldman doctrine
bars these purported due process claims.
As will soon become evident, resolution of plaintiff's First
Amendment retaliation and equal protection claims is not so
straightforward. B. Rule 12 Legal Standards
As mentioned at the outset, in moving to dismiss the State is
relying upon Rule 12(b)(6) and Rule 12(b)(1). Fairly recently
this court set forth the dismissal standards under these two
Rules. See Canadian St. Regis Band of Mohawk Indians v. N.Y.,
278 F. Supp.2d 313, 357-58 (N.D.N.Y. 2003). There is need to
reinvent the wheel, thus the court is taking the liberty of
liberally quoting from St. Regis:
[A] Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction is concerned, . . . will
be denied unless the alleged claim under the
Constitution or federal statutes clearly appears to
be immaterial and made solely for the purpose of
obtaining federal jurisdiction or where such a claim
is wholly insubstantial and frivolous. . . . If the
claim is neither immaterial nor insubstantial, we
assume or find sufficient basis for jurisdiction, and
reserve further scrutiny for an inquiry on the
merits. . . .
In a similar vein, under Rule 12(b)(6), [t]he
complaint should not be dismissed unless it appears
beyond doubt that the plaintiffs can prove no set of
facts in support of their claims which would entitle
them to relief. . . . The issue is whether the
plaintiffs, . . ., are entitled to offer evidence to
support their claim, not whether they ultimately will
Id. at 357-58 (internal quotation marks and citations omitted).
"The standards governing dismissal under Rule 12(b)(1) and
12(b)(6) are . . . quite `generous.'" Id. at 357 (quoting
Hamilton Ch. of Alpha Delta Phi v. Hamilton College,
128 F.3d 59, 63 (2d Cir. 1997)). By the same token, however, as will soon
become evident, the primary issue here is subject matter
jurisdiction. On that issue the plaintiff "must prove the
existence of [same] by a preponderance of the evidence." Moser
v. Pollin, 294 F.3d 335
, 339 (2d Cir. 2002) (citation omitted)
(emphasis added). Keeping the foregoing principles firmly in
mind, the court will turn to the parties' substantive arguments.
1. Rooker-Feldman Doctrine
The primary focus of the State's motion is that this action
should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) based
upon the doctrine of collateral estoppel. The State goes on to
briefly argue that as an additional reason for dismissing this
action, this court lacks subject matter jurisdiction based upon the Rooker-Feldman doctrine. To be sure,
"the precise demarcations of the Rooker-Feldman doctrine . . .
and the preclusive effect of common law . . . collateral estoppel
on the other, remain obscure." Harris v. New York State
Department of Health, 202 F. Supp.2d 143, 158 (S.D.N.Y. 2002).
"[Y]et[,] the doctrines differ in fundamental ways that may
materially affect how a case may be decided." Id. at 159
(citing Wright, Miller & Copper, § 4469.1, at 664)).
There is a fundamental distinction between the Rooker-Feldman
doctrine and collateral estoppel. "[T]he Rooker-Feldman doctrine
addresses the subject matter jurisdiction of federal courts[,]"
id. at 159 (emphasis added), whereas "[c]ollateral estoppel
protects parties from multiple lawsuits and the possibility of
inconsistent decisions, and it conserves judicial resources."
Lytle v. Household Manufacturing, Inc., 494 U.S. 545, 553 (1990
(citation omitted). "By casting the [Rooker-Feldman] doctrine as
one barring federal court jurisdiction, the Supreme Court
necessarily underscored the substantive and procedural
distinctions between [that doctrine] and the preclusion effects
of res judicata and collateral estoppel." Harris,
202 F. Supp.2d at 160. Obviously, without subject matter jurisdiction,
a court does not have the authority to consider the merits of a
case. Id. (citing cases). Thus, although the State did not
address the issue of subject matter jurisdiction first, this
court is bound to do so. See Tsabbar v. Booth, 293 F. Supp.2d 328,
334 n. 4 (S.D.N.Y. 2003) (citation omitted) (finding that
the Rooker-Feldman doctrine divested the court of subject matter
jurisdiction, court declared that it "need not rule upon the
applicability of res judicata and collateral estoppel"));
Clinch v. Spence, 207 F. Supp.2d 262, 266 (S.D.N.Y. 2002)
(citations omitted) (given defendants' lack of subject matter
jurisdiction under the Rooker-Feldman doctrine, court was
"required to resolve [that] challenge to [its] subject matter
jurisdiction prior to considering any other question");
Birmingham v. Ogden, 70 F. Supp.2d 353, 358 (S.D.N.Y. 1999)
(citations omitted) (court reasoned that because it was
"required" to resolve the issue of subject matter jurisdiction
"prior to considering any other question[,]" it must begin its
analysis by addressing defendants' Rooker-Feldman argument).
"First announced in Rooker v. Fidelity Trust Co.,
263 U.S. 413, . . . (1923), and later affirmed in District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, . . . (1983), the
Rooker-Feldman doctrine holds that, among federal courts, only
the Supreme Court has subject matter jurisdiction to review state
court judgments." Breedlove v. Cabou, 296 F. Supp.2d 253, 267
(N.D.N.Y. 2003) (citations omitted). In other words, "[t]he
essence of the Rooker-Feldman doctrine is that inferior federal courts have no subject matter
jurisdiction over cases that effectively seek review of judgment
of state courts and that federal review, if any, can occur only
by way of a certiorari petition to the Supreme Court." Santini
v. Connecticut Hazardous Waste Management Service, 342 F.3d 118,
126 (2d Cir. 2003) (internal quotation marks and citation
omitted). As the Second Circuit has explained on more than one
Rooker-Feldman bars those claims that were
adjudicated in a prior state court action, as well as
those claims that are `inextricably intertwined'
with the state court judgment. [The Second Circuit
has] held that "`inextricably intertwined means, at
a minimum, that where a federal plaintiff had an
opportunity to litigate a claim in a state proceeding
. . ., subsequent litigation of the claim will be
barred under the Rooker-Feldman doctrine if it would
be barred under the principles of preclusion.'
Id. at 126 (quoting Moccio v. N.Y. State Office of Court
Admin., 95 F.3d 195, 198-200 (2d Cir. 1996)) (emphasis added).
"Courts have identified several factors to guide application of
the Rooker-Feldman "inextricably intertwined" standard."
Clinch, 207 F. Supp.2d at 267. "These include, but are not
limited to: whether the case brought in federal court by the
party unsuccessful in state court amounts merely to a recasting
of losing claims under a semblance of federal . . . causes of
action not decided or interposed in the prior state court
proceeding, so that in essence, the district court is being
called upon to undertake appellate review of the state court
decision . . . [,] or . . . whether the invocation of the federal
court's jurisdiction effectively seeks a direct review of a state
court judgment[.]" Id. (internal quotation marks and citations
"[W]hether an issue is `inextricably intertwined' with a claim
raised in state proceedings is easy to identify at the outer
limits." Hason v. Office of Professional Medical Conduct, No.
02 CIV. 10007, 2004 WL 876931, at *5 (S.D.N.Y. April 19, 2004)
(citing Moccio, 95 F.2d at 198-99). On the one hand, "`[i]f the
precise claims raised in a state court proceeding are raised in
the subsequent federal proceeding, Rooker-Feldman plainly will
bar the action.'" Id. (quoting Moccio, 95 F.3d at 198-99).
"In contrast, if an issue `was never presented in the state court
proceedings and the plaintiff did not have an opportunity to
present [it] in those proceedings, [it is] not `inextricably intertwined' and therefore not barred by
Rooker-Feldman.'" Id. (quoting Moccio, 95 F.3d at 199).
As will soon become apparent, whether plaintiff Dolan's First
Amendment retaliation and Equal Protection claims are
"inextricably intertwined" with his Article 78 claims does not
fit neatly into either of those two categories. Therefore, "[t]o
determine the status of an issue [such as this] falling between
those two boundaries, th[e] [c]ourt can seek guidance from the
principle of collateral estoppel under state law New York law
for this action." Id. (emphasis added) (citing DiBlasio v.
Novello, 344 F.3d 292, 296 (2d Cir. 2003)); see also
Clinch, 207 F. Supp.2d at 267 ("inextricably intertwined has
been interpreted to be co-extensive with the law of preclusion")
(citation omitted). Given the overlap between the Rooker-Feldman
and collateral estoppel doctrines, "`a claim will be barred under
the [former] doctrine if it would be barred under the principles
of preclusion.'" Marden, 22 F. Supp.2d at 185 (quoting Moccio,
95 F.3d at 200).
In New York, two criteria must be met before collateral
estoppel will apply: "[A] claim asserted . . . is precluded
pursuant to the Rooker-Feldman doctrine only if (1) [it] was
actually and necessarily decided . . . and (2) [plaintiff] had a
full and fair opportunity to litigate . . . [that] issue in [his
Article 78] proceeding." Hason, 2004 WL 876931, at *5 (internal
quotation marks and citations omitted). Before examining the just
identified elements vis-a-vis the facts of the present case, a
brief outline of how courts have interpreted these two elements
is in order.
a. Actually and Necessarily Decided
As to the actually and necessarily decided element, "it is not
necessary that the issue have been `actually litigated' in the
sense that evidence have been offered on the point." Richardson
v. City of New York, No. 97 Civ. 7676, 2004 WL 325631, at *2
(S.D.N.Y. Feb. 20, 2004). "New York requires only that the issue
have been properly raised by the pleadings or otherwise placed
in issue and actually determined in the prior proceeding." Id.
(internal quotation marks and citation omitted) (emphasis added).
In making this assessment, the "focus [is] on the rights,
questions or facts that underlie a judicial decision; it does not
focus on the legal theories underlying the complaint or
decision." Beharry v. M.T.A. New York City Transit Authority,
No. 96-CV-1203, 1999 WL 151671, at *6 (E.D.N.Y. March 17,
1999).*fn3 "Therefore, subject to certain caveats not
relevant here, once a certain set of facts has been determined in
a proceeding, those facts cannot be challenged even when a subsequent proceeding
attempts to apply a new legal theory to those facts." Id.
(citing Moccio, 95 F.3d at 201); see also Bracey v.
Safir, No. 98 Civ. 6565 SAS, 1999 WL 672564, at *4 (S.D.N.Y.
1999) ("Courts in this Circuit have applied the Rooker-Feldman
bar only where the factual underpinnings of a plaintiff's
subsequent constitutional claim were adversely decided in a
previous state proceeding.") Thus, "[f]or collateral estoppel
purposes, issues are considered identical if a different decision
in the second suit would necessarily destroy or impair rights or
interests established by the first." Richards v. City of New
York, No. 97 Civ. 7990, 2003 WL 21036365, at *8 (S.D.N.Y. 2003)
(internal quotation marks and citations omitted).
Significantly, "[u]nder Second Circuit precedent, the
Rooker-Feldman principle may bar assertion in federal court not
only of issues and claims actually presented in state court
but, under certain circumstances, of those that could have been
raised." Harris, 202 F. Supp.2d at 169 (citation omitted)
(emphasis added). This is so "even if the claim in which the
issue arises in the subsequent action was not brought and could
not have been brought in the previous action whose judgment
gives rise to the estoppel." Santini, 342 F.3d at 127
(citations omitted) (emphasis added). As the party seeking
preclusion, the State "bears the burden of demonstrating that an
issue . . . was decided in a prior proceeding[.]" Jessen v.
Cavanaugh, 9 F. Supp.2d 393, 396 (S.D.N.Y. 1998) (citation
b. Full and Fair Opportunity to Litigate
A variety of factors are relevant to the issue of whether a
plaintiff has had a "full and fair opportunity" to litigate a
claim in a prior state court proceeding. As the Second Circuit
explained in Moccio, "[u]nder New York law, the determination
of whether there was a full and fair opportunity to litigate
requires that we consider, among other things, the size of the
claim in the prior proceeding, the forum of the prior proceeding,
the extent of the prior litigation, and the availability of
evidence now that was not available at the time of the prior
proceeding." 95 F.3d at 202 at 202 (citation omitted). Collateral
estoppel or "[i]ssue preclusion will apply only if it is quite
clear that these requirements have been satisfied, lest a party
be `precluded from obtaining at least one full hearing on his or
her claim.'" Palmer v. Goss, No. 02 Civ. 5804, 2003 WL
22519446, at *3 (S.D.N.Y. Nov. 5, 2003) (quoting Colon v.
Coughlin, 58 F.3d 865, 869 (2d Cir. 1995)) (other citation
omitted). Plaintiff Dolan, as "the party resisting preclusion
must demonstrate that he was denied a full and fair opportunity to
litigate the issue in the prior [Article 78] proceeding." See
id. at 397 (citation omitted).
As mentioned at the outset, the plaintiff is alleging (1) that
the State engaged in "unlawful discrimination and retaliation
against [him] because of [his] protected speech and/or expressive
conduct on matters of public concern, in violation of the First
Amendment of the United States Constitution[;]" and (2) that by
disqualifying him for an investigator position, defendants
violated his Equal Protection rights under the Fourteenth
Amendment. Co. at 22, ¶ 61; and at 55, ¶¶ 132 and 136. Plaintiff
is relying upon 42 U.S.C. § 1983 as the statutory basis for these
claims. See id. By way of illustration, plaintiff alleges
that his equal protection rights "under . . . 42 U.S.C. § 1983"
were violated. Id. at 55, ¶¶ 132 and 136. Section 1983 does not
provide any substantive rights though; it is simply a vehicle "by
which aggrieved persons may allege violations of their federal or
constitutional rights." Walton v. Safir, 122 F. Supp.2d 466, 476
n. 10 (S.D.N.Y. 2001) (citation omitted). Thus, to the extent
plaintiff attempts to rely upon section 1983 as a basis for any
substantive rights, such reliance is misplaced and the court will
disregard same. The court will address plaintiff's constitutional
I. First Amendment Retaliation
The State argues collateral estoppel bars plaintiff's First
Amendment retaliation cause of action "because [plaintiff] Dolan
specifically raised the issue of political discrimination in
his Article 78 proceeding and the State court reviewed this issue
when it decided against plaintiff's bad faith termination claim."
St. Memo. at 13 (emphasis added) (citations omitted). Plaintiff
counters that the issues raised in the Article 78 proceeding
"differ entirely" from those which he is raising in this section
1983 action. See Pl. Memo. at 3. In plaintiff's opinion, the
only issue which he "raised" in the Article 78 proceeding "was
whether [his] dismissal was an arbitrary and capricious abuse of
discretion effected by an error of law in excess of the [Civil
Service] Commission's jurisdiction under Civil Service Law 50(4),
a New York statute that allows retroactive disqualification of
civil service employees under certain circumstances." Id. at
2-3 (citations omitted). Thus, plaintiff reasons, his First
Amendment retaliation claim was not "actually and necessarily
decided" in the prior state court litigation.
The parties did not specifically address whether the issue of
plaintiff's retaliation claim was properly raised by the
pleadings or otherwise placed in issue. However, because that is
a component of the first collateral estoppel element, the court
will address this issue and in so doing will examine the
extensive record before it. When that is done, the court is
satisfied that the retaliation issue meets the criteria of having
been properly raised in the Article 78 proceeding.
In his Article 78 proceeding Dolan also alleged that the
State's "purported concern with the violation of probation is
pre-textual, arbitrary and capricious and an abuse of
discretion." Id. at 35, ¶ 182 (emphasis added). For example, in
a verified Petition to Civil Service plaintiff's counsel at the
What has happened is that Mr. Dolan's political
enemies discovered his appointment and from the
retribution-infested political waters of Columbia
County comes this charge made through unnamed and
unidentified `Tax Department officials.'
Id. at 66 (emphasis added). That petition further stated:
Mr. Dolan has demonstrated his merit and fitness for
this Grade 13 [investigator] position. It would truly
be a sad day if the political bacteria that has
infected Columbia County were allowed to spread to
the New York State Department of Civil Service to
cause the Department to take the action the unnamed
Tax Department officials seek.
Id. at 69 (emphasis added). Then, petitioner explicitly
"suggest[ed] that the proper investigation lies not with Mr.
Dolan's disclosures but rather in determining whether violations
of Sections 106 and 107 of the Civil Service Law and Mr.
Dolan's State and Federal constitutional rights occurred[.]
Id. at 69 (emphasis added). Certainly this can be read as
asserting a First Amendment retaliation claim, especially when
read together with the administrative record.
Furthermore, consistent with the foregoing, in his supreme
court memorandum of law Dolan specifically took the position that
"[a] probationer cannot be terminated for reasons that are
prohibited in the law or by the Constitution . . ., which
includes because of one's politics . . ., or because of a prior
conviction[.]" Id. at 62 (emphasis added) (citations omitted).
Likewise, in his notice seeking permission to appeal to the Court
of Appeals, plaintiff declared that "[t]he dark cloud of
political retaliation hangs over [his] termination."
Affirmation of Robert A. Siegfried (Aug. 28, 2003), exh. E
thereto at 26 (emphasis added). Thus, despite plaintiff's
assertion that his retaliation claim was "not even presented to
the state courts[,]" Pl. Memo. at 8-9, undoubtedly it was. As the foregoing demonstrates, that claim was raised by
the pleadings or otherwise placed in issue during the Article 78
Plaintiff's First Amendment retaliation claim also was
"actually decided" as that phrase is used in the parlance of
collateral estoppel analysis. In arguing that plaintiff's First
Amendment retaliation claim was actually and necessarily decided,
the State heavily relies upon Jessen, supra. In Jessen,
after plaintiff's termination as a park superintendent, he
brought an Article 78 proceeding alleging that "the Town had
acted in bad faith and without any legitimate economic motivation
in abolishing his position, in violation of . . . the New York
State Constitution." 9 F. Supp.2d at 369. The state court found to
the contrary: Plaintiff's "position was eliminated due to
financial considerations[.]" Id. at 397. Furthermore, the state
court "specifically found that Jessen had not demonstrated any
lack of good faith in the manner in which [the cost savings] was
accomplished." Id. (internal quotation marks omitted). Thus the
court concluded that the "defendants' actions were substantively
valid and procedurally proper." Id.
In his subsequent section 1983 action, plaintiff Jessen alleged
"that his First Amendment rights of freedom of association and
free speech were violated because his position was eliminated in
retaliation . . . against [plaintiff] for his association" with a
perceived political rival of the Town. Id. at 395. The court
held that it lacked subject matter jurisdiction under the
Rooker-Feldman doctrine. It reasoned that although "Jessen did
not assert a claim precisely denominated as a First Amendment
claim in the Article 78 proceeding, he did fully litigate his
contention that the abolition of his position was not based on
economic considerations and that the elimination of the position
was done in bad faith." Id. at 397. In finding that plaintiff
Jessen fully litigated his retaliation claim, the court further
reasoned that "[t]he State Court, accepting the defendants'
evidence that the position was eliminated due to financial
considerations, specifically found that Jessen had not
demonstrated any `lack of good faith in the manner in which [the
costs savings] was accomplished.'" Id.
The court went on to invoke the Rooker-Feldman "inextricably
intertwined standard" explaining that the test thereunder "`is
whether the federal district court would necessarily have to
determine that the state court erred in order to find that the
federal claims have merit.'" Id. (quoting Khal Charidim Kiryas
Joel v. Village of Kiryas Joel, 935 F. Supp. 450, 455 (S.D.N.Y.
1966) (other citation omitted)). Applying that test, the Jessen
court reasoned that if it were to find that "Jessen's position was in fact eliminated in retaliation for
[his] First Amendment protected activities [such finding] would
necessarily contradict and in effect overrule the State
Court's judgment that the elimination of the position was based
on economic considerations and was not undertaken in bad faith."
Id. Thus because the court found that "[t]he Town's action
could not be both retaliatory and in good faith[,]" it found that
the first prong of the collateral estoppel test had been met
"because an issue essential to plaintiff's First Amendment claim
was decided adversely to him in the Article 78 proceeding." Id.
The Jessen court is not alone in its reasoning. For example,
in Vargas v. City of New York, No. 01 Civ. 7093, 2003 WL 660820
(S.D.N.Y. Feb. 28, 2003), after a Civilian Review Board found
plaintiff "guilty of using excessive force while effectuating
[an] arrest[,]" he was terminated. Id. at *1 (citations
omitted). Following his termination, plaintiff commenced an
article 78 proceeding alleging "that the Board's decision was
arbitrary, capricious, an abuse of discretion, contrary to the
weight of the evidence adduced at the disciplinary hearing and
excessive punishment[,]" as well as amounting to a denial of due
process. Id. at *5 (internal quotation marks and citation
omitted). Upon transfer to the Appellate Division that court
"dismissed plaintiff's case holding that the . . . determination
that plaintiff used excessive force in making the arrest was
`supported by substantial evidence' and that the penalty of
dismissal does not shock our conscience in view of the
evidence[.]" Id. (citing Vargas v. Safir, 278 A.2d 54 (1st
Plaintiff Vargas then commenced a civil rights action in
federal court alleging that he was terminated based upon his race
in violation of his Equal Protection and Due Process rights.
Ultimately the Vargas court held that based upon the
Rooker-Feldman doctrine, it was without subject matter
jurisdiction to consider those claims. See id. at *6. In so
holding, the court rejected plaintiff's contention "that he did
not have an opportunity to argue discrimination and disparate
treatment claims in the prior proceedings." Id. at *4.
Plaintiff had such an opportunity reasoned the Vargas court
because "an Article 78 proceeding is an appropriate forum to
raise [such] issues[.]" Id. at *5 (citations omitted). The
court stressed that "[a]lthough plaintiff did not raise his
constitutional claims in his Article 78 proceeding, it cannot be
doubted that he could have raised these issues in that
proceeding." Id. (citing Moccio, 95 F.3d at 199) (emphasis
added). Ultimately the Vargas court found that plaintiff's
constitution based claims were "inextricably intertwined" with
his Article 78 claims for Rooker-Feldman purposes. Framing the
issue before it as "whether [plaintiff's] termination was
terminated because of his race[,]" the district court held that
"the Appellate Division's finding that the termination decision
was not arbitrary and capricious but was based on substantial
evidence necessarily subsumes the question of whether it
was made with discriminatory intent." Id. at *6 (emphasis
added). Thus, based upon the Rooker-Feldman doctrine, it was
without jurisdiction to hear plaintiff's federal action.
As in the Jessen line of cases, the issue of whether the
State's decision to terminate plaintiff Dolan was arbitrary and
capricious was placed in issue and actually determined in the
Article 78 proceeding. Indeed, the petition itself is replete
with assertions that numerous acts of the Commission were
arbitrary and capricious. See, e.g., R. at 35, ¶ 119; at 36,
¶ 122. Petitioner Dolan also asserted a bad faith claim in his
Article 78 petition, averring that the State's "conduct in
discharging [plaintiff] . . . constitutes bad faith and is
arbitrary, capricious and an abuse of discretion." Id. at 38, ¶
195; see also id. at 23, ¶ 105 (State's "termination . . .
was accomplished in bad faith"). Recognizing its "limited
review of whether the [Civil Service] action was arbitrary or
capricious[,]" the Appellate Division decided that issue when it
held that Civil Service was justified in revoking plaintiff's
appointment because there was a rational basis for so doing .
Dolan, 304 A.D.2d at 1039.
Based upon the Jessen and Vargas rationale, the Appellate
Division's finding that the State had a "rational basis" under
section 50(4) of the Civil Service law for disqualifying
plaintiff as a Tax Department investigator subsumes the question
of whether that disqualification was made with an impermissible
motive. See also Crosland v. City of New York,
140 F. Supp.2d 300, 310 (S.D.N.Y. 2001) (citing cases), aff'd
without pub'd decision, 54 Fed.Appx. 504 (2d Cir. 2002)
(internal quotation marks and citations omitted) (where "state
court concluded that the Medical Board's decision to rejects
[plaintiff's] application for accidental disability retirement
was both rational and based on credible medical evidence[,] . . .
finding by [federal district] Court that [plaintiff] was denied
[such] retirement in retaliation for his protected speech would
necessarily contradict the state court's determination");
Richardson v. City of New York, No. 97 Civ. 7676, 2004 WL
325631, at *1 (S.D.N.Y. Feb. 20, 2004) (quoting Latino Officers
Ass'n of the City of New York, Inc. v. City of New York,
253 F. Supp.2d 771, 787 (S.D.N.Y. 2003)) ("[Wh]ere an Article 78 petitioner seeks annulment of a disciplinary decision
on the ground that it was discriminatory or retaliatory, a
determination by the state courts that the decision was supported
by substantial evidence `necessarily implie[s] rejection of [the]
claim that [the] termination was discriminatory and retaliatory'
and thus forecloses a similar contention in a subsequent federal
action.") Furthermore, plaintiff's First Amendment retaliation
claims and his Article 78 claims are "inextricably intertwined"
under the Rooker-Feldman doctrine. That is so because if this
court were to decide now that plaintiff's retaliation claim had
merit, then it also would necessarily be holding that the State
court erred. That is precisely the situation which the Supreme
Court sought to avoid under Rooker-Feldman.
There is an additional reason for finding that Dolan's
retaliation claim was necessarily decided in the Article 78
proceeding. That is because both the Supreme Court and the
Appellate Division expressly found his other claims to be without
merit. The Supreme Court stated that it "ha[d] reviewed the
petitioner's remaining contentions and conclude[d] that they
[we]re without merit." R. at 9. In nearly identical language, the
Third Department stated that it had "considered petitioner's
additional contentions, including his assertion that he was
denied due process, and f[oun]d them equally unpersuasive."
Dolan, 304 A.D.2d at 1039 (Def. App. 1). Thus, as in Parker v.
Blauvelt Volunteer Fire Co., Inc., 690 N.Y.S.2d 478 (1999),
"[a]lthough the Appellate Division in the prior proceeding
primarily addressed the claim that the determination to discharge
plaintiff was not supported by substantial evidence, the court
followed it statutory duty to dispose of all issues in the
proceeding when it held that all of plaintiff's remaining
contentions [we]re without merit[.]" Id. (internal quotation
marks and citations omitted). Therefore, the fact that the state
courts found plaintiff's remaining claims to be without merit
satisfies collateral estoppel's actually decided standard.
Plaintiff urges the court to follow the Second Circuit's decision
in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995) and reach a
contrary result, i.e. that his First Amendment retaliation
claim was not actually litigated and necessarily decided.
Colon is readily distinguishable from the present case however.
There, in his Article 78 proceeding Colon "did not mention [his
prior lawsuits,] let alone suggest that the disciplinary
proceedings against him were a response to those lawsuits." Id.
at 870. In finding that Colon was not collaterally estopped from
asserting a retaliation claim in a subsequent § 1983 action, the
Court also relied upon the "very narrow issue" which he asserted
in his Article 78 petition. Id. at 871. Not only was that petition couched in narrow terms, "in his brief to the Appellate
Division, Colon took care to make clear that he was not
challenging the hearing officer's decision was contrary to the
The same is not true here. As set forth above, plaintiff
Dolan's Article 78 petition was far more broadly framed than was
Colon's petition. Moreover in sharp contrast to Colon, for the
reasons previously discussed, plaintiff Dolan's retaliation claim
was before the Supreme Court and the Appellate Division. Thus,
Colon does not support Dolan's position.
In arguing that his retaliation claim was not actually decided
in the Article 78 proceeding, plaintiff further asserts that
defendants' "motivation . . . was not even mentioned" therein.
Pl. Memo. at 9. This is inaccurate. The record contains at least
two specific references to defendants' claimed motivation.
Indeed, in this Appellate brief Dolan unequivocally stated,
"[t]here is ample evidence that the termination of petitioner was
improperly motivated by bad faith considerations[.]" Siegfried
Aff'm, exh. D thereto at 62. Similarly, Dolan claimed that it is
"telling as to [defendants'] motivation" that there was an
investigation into plaintiff's background only "after an
unidentified person read a news article concerning the fact that
[he] was a political adversary of his employer[.]" Id. Thus to
the extent plaintiff is claiming that his retaliation claim was
not "actually decided" [for collateral estoppel purposes] in the
Article 78 proceeding, this argument is misplaced.
All of these reasons convince the court that the State has met
its burden of showing that the First Amendment retaliation issue
was "raised by the pleadings or otherwise placed in issue and
actually determined in the prior [Article 78] proceeding." See
Richardson, 2004 WL 325631, at *2 (internal quotation marks and
As to the second collateral estoppel prong, the State maintains
that plaintiff had a full and fair opportunity to argue his First
Amendment claim "because he had ample opportunity to submit
petitions, affidavits, and other forms of written proof as well
as the ability to obtain discovery and a trial[,]" regardless of
the state court's denial of plaintiff's discovery request. St.
Memo. at 17-18. Even though he had the burden of proving this
aspect of collateral estoppel, plaintiff has offered nothing to
refute this assertion by the State. Plaintiff's failure to meet
his burden of proof, combined with the fact that the State did
meet its burden, easily supports the conclusion that
Rooker-Feldman precludes a finding of subject matter jurisdiction
by this court.
This conclusion is bolstered by several factors. First of all,
as noted earlier, clearly an Article 78 proceeding is a proper forum in which to raise
constitutional issues. Vargas, 2003 WL 660820, at *5 (citing
Moccio, 95 F.3d at 199); see also Jessen, 9 F. Supp.2d at
397 (citation omitted) (finding that plaintiff did have a full
and fair opportunity to litigate his First Amendment retaliation
claim in the prior Article 78 proceeding where he could raise
that constitutional claim in such proceeding and there was "no
evidence that [he] was deprived of an opportunity to litigate
fully the circumstances of the abolition of his position"); see
also Marden, 22 F. Supp.2d at 185 ("Although Marden did not
assert a claim precisely denominated as a First Amendment
retaliation claim in the Article 78 proceeding, he did have the
opportunity fully to litigate his contention that his dismissal
was retaliatory, and hence unconstitutional, because of his
involvement in protected political conduct.") And certainly
plaintiff Dolan could have availed himself of that opportunity,
but he did not.
Second, plaintiff was represented by counsel and as the
extensive record and state court filings show, he had ample
opportunity to pursue the claims surrounding his revocation and
subsequent termination, including his First Amendment claim.
Third, as in Crosland "plaintiff neither claims that he was
barred from presenting evidence in support of his First Amendment
claim nor asserts that he has new evidence that was unavailable
to him at the time of the Article 78 proceeding." 140 F. Supp.2d
at 311. Consequently, because the State has shown that the
retaliation issue was properly raised by the pleadings or
otherwise placed in issue, and actually determined in the Article
78 proceeding, and because plaintiff has not shown that he was
deprived of a full and fair opportunity to litigate that claim
during the Article 78 proceeding, the Rooker-Feldman doctrine
mandates the conclusion that this court lacks subject matter
jurisdiction to consider plaintiff's retaliation claim.
Accordingly, the court hereby grants the State's motion to
dismiss same pursuant to Fed.R.Civ.P. 12(b)(1).
ii. Equal Protection
Having disposed of plaintiff's First Amendment claim, there is
only one claim remaining Equal Protection. The core of
plaintiff's equal protection violation in this action is as
The plaintiff was singled out by the [State] . . .
and punished differently than similarly situated
co-workers, based in substantial part upon . . . [the
State's] irrational animus against plaintiff and
retaliatory motivation against plaintiff based on
[his] well known position as an active member of the Democratic Party in Columbia County and in New
Co. at 55, ¶ 133 (emphasis added). As part of this claim,
plaintiff further alleges that the State's "determinations and
discriminatory treatment alleged [t]herein were without a
rational basis." Id. at 55, ¶ 133. The Third Department
explicitly found to the contrary, however. It plainly held that
"petitioner's failure to mention his probation violation in the
application supplement provides a rational basis for the
conclusion that such omission was deceptive and intentional,
thereby justifying revocation of petitioner's appointment."
Dolan, 304 A.D.2d at 1039.
For the same reasons which this holding "subsumed" plaintiff's
retaliation claim, it also "subsumes" his Equal Protection claim.
Plaintiff Dolan cannot avoid the collateral estoppel implications
of the Third Department's holding simply by relying upon a new
legal theory Equal Protection. The court agrees with the State
that when the Supreme court "reject[ed] [plaintiff's] bad faith
termination claim and held that the decision to terminate his
employment was rational and fully in accordance with law[,]"
plaintiff's "equal protection claim was necessarily decided
adverse to plaintiff in his previous state proceedings." St.
Memo. at 16 (citation omitted).
Plaintiff counters that his equal protection claim was not
actually and necessarily decided in the Article 78 proceeding
because that claim raises "distinct" issues from those which were
litigated and decided in state court. See Pl. Memo. at 9.
Plaintiff explains that even if, as the state court found, the
State had a rational basis under section 50(4) for terminating
him, that does not exclude the possibility that his termination
was constitutionally impermissible. This conclusion, however,
flies in the face of the case law discussed in the preceding
section . As mentioned earlier, State Supreme Court expressly
found that "Civil . . . Service's decision to revoke petitioner's
appointment, therefore, was fully in accordance with law." R. at
8. In a similar vein, the Appellate Division found that because
there was a rational basis for plaintiff's termination, Civil
Service's decision was not arbitrary and capricious. Dolan, 304
A.D.2d at 1039. In accordance with the case law discussed above,
these findings would preclude a subsequent contrary finding by
this court, i.e. that plaintiff's Equal Protection rights were
violated. Thus, for all of these reasons, the court finds that
plaintiff's equal protection claim was actually decided for
collateral estoppel purposes. _____ Plaintiff asserts that he did
not have a full and fair opportunity to litigate his equal protection claim in state court
because he was denied discovery there. This argument lacks merit.
As the Second Circuit recognized in Moccio, "the general
inability to obtain in the Article 78 proceeding all the
discovery [plaintiff] might be entitled to in federal court" does
not "diminish the full and fair opportunity [plaintiff] had to
litigate these issues in the Article 78 proceeding." Moccio, 95
F.3d at 202; see also Vega v. University of New York Bd. of
Trustees, 67 F. Supp.2d 324, 336 (S.D.N.Y. 1999) (citation
omitted) (because "[t]he lack of discovery does not, in an of
itself, prevent a finding of collateral estoppel[,]" court
rejected plaintiff's argument that he was denied a full and fair
opportunity to litigate a claim because he was not allowed
To conclude, the court hereby GRANTS the defendants' motion to
dismiss for lack of subject matter jurisdiction pursuant to Fed.
R. Civ. P. 12(b)(1). This holding renders moot defendant's Fed.
R. Civ. P. 12(b)(6) motion to dismiss for failure to state a
claim upon which relief may be granted. The court also DENIES
plaintiff's cross-motion for discovery pursuant to Fed.R. Civ.
IT IS SO ORDERED.